Malaysia

PAS MP defends Kedah fatwa challenge ban

By Anisah Shukry
April 27, 2012
Latest Update: April 27, 2012 10:52 pm

KUALA LUMPUR, April 27 — Selangor PAS will not push for the state to emulate Kedah’s enactment barring legal challenges to fatwas (religious edicts) despite supporting the move.

Deputy state chief Khalid Samad told reporters that he agreed with the legal provision passed by the Kedah legislative assembly on April 18 as disputes over fatwas should be brought to the fatwa council rather than to the courts.

“I believe that the fatwa council is made up of religious experts who are more qualified to judge religious issues compared to the syariah or civil court,” Khalid (picture) told a press conference here.

But the Shah Alam MP said Selangor’s Pakatan Rakyat (PR) administration would not be passing the enactment in the state soon as it was not its “main agenda”.

“The situation in Selangor is slightly different... I think the Kedah state government’s intent was to empower the fatwa council so that it is on the same level as the courts. And by virtue of being on the same level, it cannot be challenged by the courts.

“It’s a question of giving the fatwa council its due and rightful position,” he said.

But he stressed that because fatwas are only opinions, people are free to challenge the council, who would discuss and debate the issue “from all religious point of views”.

“The fatwa council, true to Islamic tradition, will offer respect to differences of opinion. It’s just that if you want to challenge the opinion through the courts, the level of expertise of the judges may not be the same as the scholars.

“The judges in court are trained for different purposes, (which is) interpreting law pertaining to various issues, but not in the field of coming up with fatwas. So it can be a bit difficult when people who don’t understand Islam handle the issue.”

He further pointed out that if the public disagreed with the fatwas issued by the council, they could turn to opinions made by other scholars.

"If you don't want to accept it, then you hold on to another opinion by another scholar, and you come up with your reasoning. Then there is respect for difference of opinions which is taught by Islam. But the fatwa council has done its responsibility by giving its opinion on the matter."

The MCA today accused Kedah of encroaching on judicial independence by passing the enactment barring all fatwas from being challenged by the courts.

Party president Datuk Seri Dr Chua Soi Lek said the MCA “condemns” the new legal provision as being “totally undemocratic”.

The veteran leader also slammed the DAP’s silence in the matter, pointing out that according to reports from his party leaders in Kedah, the DAP’s assemblyman had neither supported nor rejected the proposed amendment during debates in the House.

He pointed out that the party was usually the first to spring to action on matters dealing with transparency, independence of judiciary and accountability.

According to an April 18 report in English daily The Star, the Kedah legislative assembly had passed an amendment to the Mufti and Fatwa (Kedah Darul Aman) Enactment 2008 during its sitting, which stipulates that “any fatwa decided by the state mufti or fatwa committee, whether gazetted or not, cannot be challenged, appealed, reviewed, denied or questioned in any civil or syariah court”.

In an immediate response, Perlis Mufti Dr Juanda Jaya had labelled the amendment unIslamic and asked if the Kedah PAS-led administration wanted to become a theocratic government instead of forming Pakatan Rakyat’s (PR) often-promoted progressive, welfare state.

Bar Council constitutional law committee chairman Syahredzan Johan had also told The Malaysian Insider that the enactment was unconstitutional as it went against the basic principles of a functioning democracy, which underlines the separation of powers between the legislative, executive and judicial arms of government.

“You have one making the law, one that executes it, one that interprets it. As a general principle, anything that ousts the jurisdiction of the civil and syariah courts goes against this and the principle of rule of law,” he said when contacted yesterday. Syahredzan added that the state assembly does not possess such powers to usurp the jurisdiction of the courts as enshrined under Article 121 of the Federal Constitution.